Opinion
No. 20-1775
06-15-2022
ARIZONA, et al., Petitioners v. CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, et al.
Rob Bonta, Attorney General of California, Michael L. Newman, Renu R. George, Senior Assistant. Attorneys General. Cherokee Dm Melton. Supervising Deputy. Attorney General. Anna Rich Deputy Attorney General, Michael J. Mongan, Solicitor General, Helen H. Hong, Counsel of Record, Deputy Solicitor General, Kimberly M. Castle, Associate Deputy, Solicitor General, State of California, Department of Justice, San Diego, CA, Philip J. Weiser Attorney General Colorado, Kathleen Jennings Attorney General Delaware, Holly T. Shikada, Attorney General Hawaii, Kwame Raoul, Attorney General Illinois, Aaron M. Frey, Attorney General Maine, Brian E. Frosh, Attorney General Maryland, Maura Healey, Attorney General Massachusetts, Dana Nessel, Attorney General Michigan, Keith Ellison, Attorney General Minnesota, Aaron D. Ford, Attorney General Nevada, Andrew J. Bruck, Acting Attorney General New Jersey, Hector Balderas, Attorney General New Mexico, Ellen F. Rosenblum, Attorney General Oregon, Josh Shapiro, Attorney General Pennsylvania, Peter F. Neronha, Attorney General Rhode Island, Mark R. Herring, Attorney General Virginia, Robert W. Ferguson, Attorney General Washington, Karl A. Racine, Attorney General District of Columbia, for Respondents. Elizabeth B. Prelogar, Solicitor General, Counsel of Record, Brian H. Fletcher, Curtis E. Gannon, Deputy Solicitors General, Sarah E. Harrington, Deputy Assistant Attorney General, Benjamin W. Snyder, Assistant to the Solicitor General, Daniel Tenny, Gerard Sinzdak, Attorneys, Department of Justice, Washington, DC, for Respondents. Tyler R. Green, Cameron T. Norris, Jeffrey S. Hetzel, Consovoy McCarthy PLLC, Arlington, VA, Mark Brnovich, Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Brunn W. Roysden III, Solicitor General, Drew C. Ensign, Deputy Solicitor General, Counsel of Record, Kate B. Sawyer, Assistant Solicitor General, Katlyn J. Divis, Assistant Attorney General, Office of the Arizona, Attorney General, Phoenix, AZ, Steve Marshall, Attorney General of Alabama, Leslie Rutledge, Attorney General of Arkansas, Theodore E. Rokita, Attorney General of Indiana, Derek Schmidt, Attorney General of Kansas, Jeff Landry, Attorney General of Louisiana, Lynn Fitch, Attorney General of Mississippi, Eric S. Schmitt, Attorney General of Missouri, Austin Knudsen, Attorney General of Montana, John M. O'Connor, Attorney General of Oklahoma, Alan Wilson, Attorney General of South Carolina, Ken Paxton, Attorney General of Texas, Patrick Morrisey, Attorney General of West Virginia, for Petitioners. Sara J. Eisenberg, Counsel of Record, Deputy City Attorney, San Francisco, CA, for Respondents City and County of San Francisco. Drew C. Ensign, Counsel of Record, Deputy Solicitor General, Office of the Arizona Attorney General, Phoenix, AZ, for Petitioners. Helen H. Hong, Counsel of Record, Deputy Solicitor General, California Department of Justice, Office of Solicitor General, San Diego, CA, for Respondents, State of California, et al. Noah G. Purcell, Counsel of Record, Solicitor General, Office of the Attorney General, Olympia, WA, for Respondents, States of Washington, et al. Elizabeth B. Prelogar, Counsel of Record, Solicitor General, United States Department of Justice, Washington, DC, for Federal Respondents. Raphael N. Rajendra, Counsel of Record, Office of the County Counsel, San José, CA, for Respondent County of Santa Clara, Calif.
Rob Bonta, Attorney General of California, Michael L. Newman, Renu R. George, Senior Assistant. Attorneys General. Cherokee Dm Melton. Supervising Deputy. Attorney General. Anna Rich Deputy Attorney General, Michael J. Mongan, Solicitor General, Helen H. Hong, Counsel of Record, Deputy Solicitor General, Kimberly M. Castle, Associate Deputy, Solicitor General, State of California, Department of Justice, San Diego, CA, Philip J. Weiser Attorney General Colorado, Kathleen Jennings Attorney General Delaware, Holly T. Shikada, Attorney General Hawaii, Kwame Raoul, Attorney General Illinois, Aaron M. Frey, Attorney General Maine, Brian E. Frosh, Attorney General Maryland, Maura Healey, Attorney General Massachusetts, Dana Nessel, Attorney General Michigan, Keith Ellison, Attorney General Minnesota, Aaron D. Ford, Attorney General Nevada, Andrew J. Bruck, Acting Attorney General New Jersey, Hector Balderas, Attorney General New Mexico, Ellen F. Rosenblum, Attorney General Oregon, Josh Shapiro, Attorney General Pennsylvania, Peter F. Neronha, Attorney General Rhode Island, Mark R. Herring, Attorney General Virginia, Robert W. Ferguson, Attorney General Washington, Karl A. Racine, Attorney General District of Columbia, for Respondents.
Elizabeth B. Prelogar, Solicitor General, Counsel of Record, Brian H. Fletcher, Curtis E. Gannon, Deputy Solicitors General, Sarah E. Harrington, Deputy Assistant Attorney General, Benjamin W. Snyder, Assistant to the Solicitor General, Daniel Tenny, Gerard Sinzdak, Attorneys, Department of Justice, Washington, DC, for Respondents.
Tyler R. Green, Cameron T. Norris, Jeffrey S. Hetzel, Consovoy McCarthy PLLC, Arlington, VA, Mark Brnovich, Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Brunn W. Roysden III, Solicitor General, Drew C. Ensign, Deputy Solicitor General, Counsel of Record, Kate B. Sawyer, Assistant Solicitor General, Katlyn J. Divis, Assistant Attorney General, Office of the Arizona, Attorney General, Phoenix, AZ, Steve Marshall, Attorney General of Alabama, Leslie Rutledge, Attorney General of Arkansas, Theodore E. Rokita, Attorney General of Indiana, Derek Schmidt, Attorney General of Kansas, Jeff Landry, Attorney General of Louisiana, Lynn Fitch, Attorney General of Mississippi, Eric S. Schmitt, Attorney General of Missouri, Austin Knudsen, Attorney General of Montana, John M. O'Connor, Attorney General of Oklahoma, Alan Wilson, Attorney General of South Carolina, Ken Paxton, Attorney General of Texas, Patrick Morrisey, Attorney General of West Virginia, for Petitioners.
Sara J. Eisenberg, Counsel of Record, Deputy City Attorney, San Francisco, CA, for Respondents City and County of San Francisco.
Drew C. Ensign, Counsel of Record, Deputy Solicitor General, Office of the Arizona Attorney General, Phoenix, AZ, for Petitioners.
Helen H. Hong, Counsel of Record, Deputy Solicitor General, California Department of Justice, Office of Solicitor General, San Diego, CA, for Respondents, State of California, et al.
Noah G. Purcell, Counsel of Record, Solicitor General, Office of the Attorney General, Olympia, WA, for Respondents, States of Washington, et al.
Elizabeth B. Prelogar, Counsel of Record, Solicitor General, United States Department of Justice, Washington, DC, for Federal Respondents.
Raphael N. Rajendra, Counsel of Record, Office of the County Counsel, San José, CA, for Respondent County of Santa Clara, Calif.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted.
It is so ordered.
Chief Justice ROBERTS, with whom Justice THOMAS, Justice ALITO, and Justice GORSUCH join, concurring. This case involves a regulation known as the Public Charge Rule, promulgated by the Department of Homeland Security in 2019. See 84 Fed. Reg. 41292 (2019). The Rule set out the test the Department planned to use to determine whether an applicant for admission into the country or adjustment to lawful permanent resident status is "likely at any time to become a public charge," which would make him ineligible. 8 U. S. C. § 1182(a)(4)(A). Several parties filed lawsuits arguing that the Rule was unlawful because it defined "public charge" too broadly.
We granted certiorari in this case not to address the merits of that argument, but to decide whether the petitioners—13 States which support the Rule—should have been permitted to intervene in this litigation to defend the Rule's legality in the Court of Appeals. Petitioners argue that the answer is yes, in light of the Government's actions.
When this and other suits challenging the Rule were first brought in 2019, the Government defended it. And when multiple lower courts, including the District Court here, found the Rule unlawful, the Government appealed those decisions. After a change in administrations, though, the Government reversed course and opted to voluntarily dismiss those appeals, leaving in place the relief already entered.
A new administration is of course as a general matter entitled to do that. But the Government then took a further step. It seized upon one of the now-consent judgments against it—a final judgment vacating the Rule nationwide, issued in a different litigation—and leveraged it as a basis to immediately repeal the Rule, without using notice-and-comment procedures. 86 Fed. Reg. 14221 (2021) ("Because this rule simply implements the district court's vacatur of the August 2019 rule ... DHS is not required to provide notice and comment."). This allowed the Government to circumvent the usual and important requirement, under the Administrative Procedure Act, that a regulation originally promulgated using notice and comment (as the Public Charge Rule was) may only be repealed through notice and comment, 5 U. S. C. § 551(5) ; see Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 101, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015). As part of this tactic of "rulemaking-by-collective-acquiescence," City and County of San Francisco v. United States Citizenship and Immigration Servs. , 992 F.3d 742, 744 (C.A.9 2021) (VanDyke, J., dissenting), the Government successfully opposed efforts by other interested parties—including petitioners here—to intervene in order to carry on the defense of the Rule, including possibly before this Court.
These maneuvers raise a host of important questions. The most fundamental is whether the Government's actions, all told, comport with the principles of administrative law. But bound up in that inquiry are a great many issues beyond the question of appellate intervention on which we granted certiorari, among them standing; mootness; vacatur under United States v. Munsingwear, Inc. , 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950) ; the scope of injunctive relief in an APA action; whether, contrary to what "[t]he government has long argued," the APA "authorize[s] district courts to vacate regulations or other agency actions on a nationwide basis," Brief for Federal Respondents 5, n. 3; how the APA's procedural requirements apply in this unusual circumstance, cf. § 551(5) ; FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) ; and more.
It has become clear that this mare's nest could stand in the way of our reaching the question presented on which we granted certiorari, or at the very least, complicate our resolution of that question. I therefore concur in the Court's dismissal of the writ of certiorari as improvidently granted. But that resolution should not be taken as reflective of a view on any of the foregoing issues, or on the appropriate resolution of other litigation, pending or future, related to the 2019 Public Charge Rule, its repeal, or its replacement by a new rule. See Cook County v. Mayorkas , 340 F.R.D. 35 (ND Ill. 2021), appeal pending, No. 21–2561 (CA7); 87 Fed. Reg. 10571 (2022) (new proposed rule that would "implement a different policy than the 2019 Final Rule").